News · Administrative law · – 7 October 2026
By judgment no. 7361 of 7 October 2026, the Sixth Section of the Consiglio di Stato reversed the ruling of the TAR Lazio (Regional Administrative Court), First Section, no. 16525/2025 and annulled, as regards the appellant undertaking, AGCM decision no. 30205 of 21 June 2022 (proceedings A536), which had found an abuse of a dominant position in the delayed handover to the new concession holder for local public bus transport in Tuscany and had imposed on the appellant a fine of EUR 288,894.53. The Court, ruling under Article 102 TFEU and referring in parallel to point (b) of Article 3(1) of Law no. 287 of 10 October 1990, holds that in the phase following the award it is not enough to establish that the outgoing operator made the handover slower or more complex: the Authority must prove the improper exercise of genuine market power, the absence of any economic and legal justification for the conduct and concrete harm to the competitive process. Where the delay stems from diverse causes, such as litigation over the award, uncertainties in the lex specialis (tender rules) on values, guarantees and reversion of assets, disagreements in negotiations and requests by the incoming operator not provided for in the tender notice, the existence of a plausible alternative explanation leaves a reasonable doubt that prevents the infringement from being regarded as proven.
The judgment distinguishes the precedent of Consiglio di Stato, Sixth Section, 27 June 2024, no. 5664, which had upheld the finding of abuse against an exclusive concession holder that refused or delayed information indispensable for launching the tender. Before the tender, an incumbent withholding essential data remains exposed to a finding of abuse; after the award, competition for the market has run its course and the outgoing operator’s failures are, as a rule, a matter of proper performance of its contractual obligations. The Court doubts that an outgoing operator bound by public-law duties of cooperation is dominant at all and, where the tender results in a new territorial monopoly, requires proof of measurable benefits for users in terms of costs, fares or quality. As regards the use of procedural and defensive remedies, the Court leaves room for the case, not proven here, of manifestly pretextual, vexatious or purely tactical initiatives, which may count as evidence of abuse. The assessment is specific to the appellant: it held no essential assets and was required to provide only the season-ticket data. The Court found it unnecessary to rule on the grounds concerning damage and the fine. In our view, the requirement of concretely appreciable effects is the part of the reasoning most open to challenge, because the Court of Justice judgment in Servizio Elettrico Nazionale (C-377/20), cited by the Court itself, ties abuse to the conduct’s capacity to produce exclusionary effects; the outcome of the other appeals against the same decision also remains to be seen.
Summary note by the CommercialistiAvvocati network, based on specialised legal and practice sources. The text does not reproduce original contributions and does not constitute professional advice.